Giles v Commonwealth of Australia

Context 4The context within which discovery is being sought, and in which it has been provided, includes that there has been an inquiry established in 2000 by a select committee of the Senate of the Australian Parliament into child migration to Australia under various schemes including the Fairbridge scheme. That Inquiry reported in 2001 in an extensive document entitled "Lost Innocents: Righting the Record". Part of that report covered the conduct of the Fairbridge Farm at Molong. The conduct of the Inquiry has produced the consequence of significance in this case, that many documents were searched for, and produced, to that Inquiry by each of the defendants in this litigation. Others remain to be identified. 5As well, as I was informed by the parties, there have been a number of published books on the subject of child migration from the UK which include specific material on Fairbridge Farm. The existing discovery has produced documents sourced from one of these authors. 6As the evidence also shows, there are publically available documents at the Australian Archive which can be accessed and read. 7This context is relevant because it demonstrates that the plaintiffs are not restricted only to the documents produced by the defendants to obtain information about the relevant facts and matters.

Motion for Discovery 8On 5 May 2014, the plaintiffs filed a Motion for Verified Discovery by reference to various categories. They sought that each defendant file a verified list of documents in accordance with the provisions of Part 21 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). 9It will be convenient to set out below the categories, together with a short description of the documents sought. They are: Category Short Description

1.    Investigations into specified complaints: 1940-1969
   

2.    UK Government fact finding mission: 1953-1958
   

3.    Correspondence regarding conditions at Fairbridge Farm not meeting acceptable standards: 1953
   

4.    Investigations into abuse at other establishments: 1937-1973
   

5.    Cottage Mothers at Fairbridge Farm: 1937-1974
   

6.    Records or logs of disciplinary action at Fairbridge: 1937-1974
   

7.    Records of incidents of abuse at Fairbridge Farm: 1937-1974
   

8.    All complaints of abuse at Fairbridge Farm: 1937-1974
   

9.    Systems standards and protocol documents for all children's homes in NSW: 1937-1974
   

10.   Academic publications which contained discussion of measures to reduce harm: 1937-1974
    

11.   Inquiry requests by various British welfare associations: 1948 - 1949
    

10As well, additional discovery categories were sought with respect to the third defendant ("Fairbridge Foundation"). The four additional categories, were as follows: Category Short Description

1.    Investigation of an employee, Mrs Wunsch prior to her removal: 1965.
   

2.    All documents relating to discipline, including the log of disciplinary actions required by NSW Child Welfare Department from 1948 onwards.
   

3.    All documents relating to work by Fairbridge students or trainees in the homes of identified Fairbridge senior staff.
   

4.    Documents relating to concerns expressed by Fairbridge UK to Fairbridge in Australia about management or personnel at the Fairbridge Farm.
   

Plaintiff's Evidence 11In support of the Motion for discovery, the plaintiff relied upon the affidavit of Mr Roop Sandhu sworn 5 May 2014. Mr Sandhu deposed that the documents which had been earlier provided from the defendants in 2012 and 2013 pursuant to consent orders for discovery had been read. He then said: "I am informed and verily believe that in the course of reading the discovered documents, certain documents have been identified that suggest the existence of additional documents which I believe to be relevant to facts in issue, which are not part of the discovered documents ("additional documents"). 12Mr Sandhu then exhibited a variety of those documents, which were then specifically addressed by senior counsel in submissions.

Commonwealth's Evidence 13The first defendant opposed the application for further discovery on three grounds, including that the application is oppressive. 14In support of that submission, the Commonwealth relied upon the affidavit of Mr Gregory Kathner sworn 16 May 2014. Mr Kathner deposed, as he had done previously, to the task to be confronted by the Commonwealth in giving further discovery. 15He said this: "The National Archives of Australia has prepared a research guide entitled 'Good British Stock: Child and Youth Migration to Australia'. While that guide gives a broad indication of what material is in the archives relating to the Fairbridge Farm School the material itself is uncatalogued. I used that guide to calculate the National Archives holdings in respect of Fairbridge Farm, Molong. These holdings related to Fairbridge total some 5,000 linear metres which I calculated to have a potential 20,000,000 pages each of which would have to be examined if the orders sought by the Plaintiffs for further discovery were to be made." (sic.) 16Mr Kathner then went on to deal with records of the Department of Immigration and Border Protection (to which I will refer to as "the Department"), which is the present emanation of previous departments of the State with responsibility for immigration. He notes that the Department has 14 record storage facilities in which records have been stored or archived. Those storage facilities are in every state of Australia, and the Australian Capital Territory. Mr Kathner noted that some boxes in storage were not registered at all, and hence their contents were unregistered and unknown. He also noted that whilst other boxes may be registered, their contents were not necessarily registered or known. 17Mr Kathner thought that there were potentially over 260,000 boxes of Departmental documents currently in various storage facilities around Australia. Each of these boxes contained between 12 and 14 files, depending, of course, upon the contents and the size of the files. 18He further deposed to the fact that although there was a card index system which was supplemented by handwritten ledgers, upon the basis of his instructions, those ledgers and index cards were not necessarily accurate. 19He said: "I'm also advised and verily believe that my client cannot be sure if the ledger books and index cards contained the whole of the Departmental holdings for the period 1901 to 1965. In addition I am informed that were a file relating to Fairbridge Farm School so identified in a ledger entry, the location of any such file is not recorded, save for files transferred to National Archives. The same situation applies to an entry recorded in an index card. Accordingly even if ledger or index card entry relevant to the Fairbridge Farm School were to be identified, the Commonwealth would in all likelihood still be required to examine the bulk of the Departmental holdings in order to locate that particular box or document." 20He summarised the position in this way: "The Plaintiffs' additional discovery categories would require my client to search: ● all of the Australian National Archives catalogue material [a task which the Plaintiffs can undertake themselves since this material is publicly available]; ● all of the uncatalogued material in National Archives which I estimate to total up to some 20,000,000 documents; ● all of the documents in all of the 3,382,470 files which the Department currently holds in storage, and which is deposed to above; and, ● having regard to the way in which the additional categories of discovery are framed, conduct similar searches of other Commonwealth agencies ...; 12. The time efforts and costs that would be required to be expended in locating, searching for and discovering the material the Plaintiffs now seek, would place an intolerable burden on my client and is onerous and oppressive." (sic.) 21His evidence was not objected to or challenged.

New South Wales' Evidence 22The second defendant, the State of New South Wales, also opposes discovery. Amongst other reasons for its opposition, it also relies upon oppressiveness. 23In support of this submission, the State relies upon the affidavit of Mr Bruce Cantrill sworn 20 May 2014, together with a number of affidavits which had been sworn earlier in the proceedings. 24Mr Cantrill draws his conclusions from instructions he has received from Officers of the Departments whose records would need to be searched. 25He deposes that there is a large and extensive compilation of records held at the NSW Government Records Repository, which have not been classified or reviewed and which may contain records relevant to Fairbridge Farm. He says that in order to search those documents a manual search would be required. He then says this: "11. I refer to the calculations set out [in previous affidavit material] and make the following calculations based on the Crown Solicitor's fees ... as to what, to the best of my knowledge and belief, would be the potential costs of searching for the documents sought by the plaintiffs in their Motion filed 5 May 2014: Estimated Time to inspect files: 995,588 hours Supervision of senior solicitor: 420 hours Estimated fees for initial search (995,588 hours at $138.00 per hour): $137,391,144.00 Estimated fees for my supervision (420 hours at $432.00 per hour): $181,440" 26Mr Cantrill also noted that in the proceedings to date, the State had provided discovery by way of a list of documents which was 395 pages in length, which referred to approximately 13,500 documents.

Fairbridge Farm's Evidence 27Mr Croot, in his affidavit of 21 May 2014, gives evidence that there is a substantial correlation between the categories of documents now sought by way of discovery, and the categories which were the subject of the earlier order for discovery. 28Mr Croot annexes a letter to that affidavit in which he refers to the "exhaustive search" which he says that his client has carried out and that: "... to the extent that the documents exhibited to the affidavit of Mr Sandhu refer to the existence of other documents we were unable to locate any of the documents referred to, except those documents already discovered."

Submissions of the Commonwealth and New South Wales 29By reference to the evidence which was filed, both the government defendants submitted that the order for discovery sought by the plaintiff was oppressive, and if granted, would result in an abuse of the court's process. 30The Commonwealth also submitted that in considering whether to make an order for discovery, the Court should conclude that such discovery may well be an exercise in futility. The Commonwealth pointed to the fact that even assuming the documents once existed, the passage of time, between 40 and 70 years, meant that it was only a remote possibility that the documents still existed because of the ordinary record disposal protocols which exist. 31The Commonwealth submitted that no further order for discovery ought to be made at this stage of the proceedings because, until all of the evidence had been served in accordance with the Court's current case management regime, the issue of relevance and the evidentiary context remains unclear. The Commonwealth submitted that the order for discovery ought be reconsidered after the evidence was complete, and also after the Court has considered whether the matter ought to be referred to mediation. New South Wales adopted these submissions. 32New South Wales submitted that the further discovery sought did not have a valid foundation in that the plaintiffs' submissions were directed to the fact that the relevant documents may have existed at a much earlier point in time, but were not likely to exist now. It also pointed to the fact that the documents relied upon as the basis for further discovery were themselves valuable evidence, or else may be valuable evidence, if tendered without any further documents being discovered. Therefore, it was submitted in substance that the additional value or benefit to the plaintiffs of such discovery was minimal, if not non-existent, and insufficient to outweigh the burden placed upon the defendants if an order for discovery was made.

Fairbridge Farm's Submissions 33The third defendant opposed the orders sought essentially upon the basis that either some of the categories were irrelevant to it, or else the categories were materially identical to categories of discovery which had already been sought, and in respect of which documents had already been provided by Fairbridge Foundation to the plaintiffs. 34In referring to the evidence on behalf of each defendant, to which reference has not been made, it has not been intended to encapsulate all of the details, but rather to summarise the essence of that evidence.

Plaintiff's Submissions in Reply 35To the extent that the plaintiffs' further categories of documents suggested that the plaintiffs were seeking documents relevant only to "a chain of inquiry", the plaintiffs submitted that such a characterisation was erroneous. They submitted that the documents sought would form an integral part of an "evidentiary mosaic" bearing on matters in dispute, and that what they were seeking were documents "... which are capable of informing matters in dispute in this way": see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [43]-[44]. 36The plaintiffs' submissions acknowledged that expense would be caused to the defendants by the Court making an order for discovery, but they submitted that the Court "... should not be unduly influenced by the expense of discovery". They submitted that notwithstanding this expense, the difficulty and complexity of the litigation, the fact that it was a representative proceeding the outcome of which would determine the legal rights of a significant number of individuals, and the importance of contemporaneous documents to the proof of a case where events occurred many decades ago, all combined to outweigh the consideration of costs and expense, and to justify the making of an order for discovery. 37The plaintiffs pointed to two other matters which they submit tell in favour of an order for discovery. The first is that the plaintiffs submit that in terms of the relative availability of resources, the plaintiffs have significantly less resources than the defendants and, accordingly, the danger of abuse of process referred to in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 does not arise in these proceedings. 38Secondly, the plaintiff points to the fact that in previous proceedings, the Commonwealth and the State have been confronted with historical issues in which, so it is asserted, discovery was routinely ordered, and this case ought to be in no different position. Attention is drawn to Commonwealth v Cornwell [2007] HCA 16; (2007) 81 ALJR 933. 39It is apparent from the first instance judgment in Cornwell that there must have been discovery (or else production) of some documents: see Cornwell v Commonwealth [2005] ACTSC 14. However, I cannot find reference in any of the judgments, either at first instance or on appeal, to the issue of what the burden was which the discovery or production of documents placed on the defendant.

Previous Discovery 40On 7 June 2012, I made a series of orders with respect to discovery by each of the defendants. The categories were those agreed upon by the parties. Subsequently, there were variations to this order, but these variations were essentially with respect to dates. 41Although the orders were made largely by consent, the range of discovery with respect to the third defendant was circumscribed by the Court after hearing submissions. At that time I remarked to counsel for the plaintiff that: "If by reason of obtaining further documents it becomes apparent that a more focussed order for discovery is appropriate by way of further and better discovery, you are at liberty to make such further applications as you wish." 42I also drew attention to the obligations of each of the defendants to provide ongoing discovery within the categories of documents which had been approved.

Discovery: Legal Principles 43The UCPR provide for the giving of discovery. Rule 21.8 provides that in any proceedings on a common law claim for damages arising out of the death of or bodily injury to any person, an order for discovery is not to be made unless: "... the court, for special reasons, orders otherwise". Other provisions of Pt 21 of the UCPR also deal with various aspects of discovery. 44In the exercise of any power under the UCPR, the Court must seek to give effect to the overriding purpose fixed by s 56 of the Civil Procedure Act 2005. That overriding purpose is in the following form: "The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." : s 56(1) Civil Procedure Act. 45The making of an order for discovery is one feature of the case management of proceedings. In making such an order, it is necessary to keep in mind the objects of case management which are set out in s 57 of the Civil Procedure Act, relevantly here, the just determination of the proceedings and the timely disposal of the proceedings at a cost affordable by the respective parties. 46Recently, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, the High Court of Australia said at [51]: "51. In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." (references omitted) 47The High Court then considered the specific provisions of the Civil Procedure Act, and said at [56] and [57]: "56. The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. 57. That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice." 48Concern over discovery which is expensive and which can be extensive has been regularly expressed by the Courts. Allsop P (as his Honour then was) said in Palavi at [101] this: "101. Parties should understand that the restriction on discovery now contained in Pt 21 is the current framework for discovery. Discovery (and its uncontrolled use) always contains (and contain) the risk of abuse and oppression. Discovery can be a highly expensive exercise. Courts in defamation, as in all other matters, including commercial matters, should be astute to ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well funded parties. Even when all parties are well resourced, over-enthusiastic and unnecessary use of discovery impedes the due administration of justice and undermines confidence in the court system's ability to resolve disputes justly, quickly and cheaply. Parties should understand that there is no entitlement to 'chain of enquiry' discovery. If discovery is being used abusively, the courts can, and should, control it. ..." 49As is apparent from the judgment in Palavi, the discretionary power which the Court is being asked to exercise requires the Court to consider and balance various competing rights and interests. On the one hand, although the plaintiffs do not have a right to discovery, in an appropriate case, an order for discovery should be made so as to enable a fair trial to be held in circumstances where all parties have access to relevant documents. But any order for discovery is necessarily a limited one. 50Plaintiffs seeking discovery have to identify documents within a class of documents which are relevant to a fact in issue: UCPR r 21.2. A document is not relevant to a fact in issue within the UCPR if the document, or class of documents, is only relevant to a "chain of inquiry", or to credit or credibility. Such documents are not the subject of any discovery order. 51As well, plaintiffs in a personal injury action, such as these proceedings, are required to persuade the Court that there are special reasons before a Court can order discovery: r 21.8 UCPR. 52Given the nature of the pleaded claims, and the fact that the plaintiffs were all children at the time of the events upon which their causes of action rest, I am satisfied that special reasons exist for this Court to make discovery orders, if otherwise appropriate. I note that none of the defendants submitted that this "threshold" requirement was not met in these proceedings.

Relevant Features 53There are present in these proceedings considerations telling against the making of an order for discovery. In this case they include: (a)the existence of other avenues for obtaining of documents and information generally. As noted above, the conduct of Fairbridge Farm at Molong has been the subject, together with other institutions, of an inquiry by a Select Committee of the Australian Senate, and a public report from that Inquiry. The Inquiry and report have identified a number of documents and other sources from which or whom further inquiries might be made, or to whom subpoenas may be addressed; (b)the parties are already in possession of a number of documents and information which indicates that a number of individual authors have researched the conduct of Fairbridge Farm at Molong and have produced books or articles about that subject; (c)a significant number of the documents produced to the Inquiry of the Australian Senate have already been made available to the plaintiffs, or are available to the plaintiffs from public institutions, by one method or another; (d)the order for discovery which was made by consent has already resulted in a large number of documents being produced by each of the defendants, but more particularly by the Commonwealth and the State of NSW; (e)many documents relied upon as a basis for the submissions that further documents ought to exist in the possession of the Commonwealth or the State of NSW, are of such an age that the implication that those further documents which may once have existed, are still in existence, is not an easy one to arrive at; (f)many of the documents upon which the submissions in support of the application for the discovery were based, and which came from a variety of sources or organisations, do not themselves demonstrate that there is a real prospect that either of the government defendants would have such documents, or documents relating to them, in their possession. 54There are features which tell in favour of discovery. They include the nature of the proceedings against the two governments which, if they are to be properly prosecuted, require the plaintiffs to explore and prove matters including relevant knowledge and negligent inaction on the part of the governments. The plaintiffs argue that without access to the governments' own documents, such proof may be difficult, hence discovery ought be favoured. 55The benefit of discovery and the production of relevant documents also assist in the promotion of an early resolution of the proceedings because such production assists in making the issues clear at an earlier stage than otherwise. A further benefit in the discovery of documents is that opposing parties are not caught by surprise at a trial when documents are produced by the party in possession of them and they seek to rely upon them. Put differently, discovery discourages the ambush theory of, and approach to, litigation. 56Here these factors are, so the plaintiffs submit, magnified in importance by the passage of time since the events in question, and the nature of the proceedings including the age of the plaintiffs at the time.

Discernment 57It is appropriate to consider first the position of the Commonwealth and the State of NSW. Both of these governments submit that having regard to the particular task with which they confronted, there are factors which demonstrate that an order for discovery would be an abuse of process. It is convenient to deal with the position of the Fairbridge Farm, the third defendant, separately because it makes no such suggestion. 58The first issue which it is necessary to address with respect to the government defendants is whether, within the meaning of the UCPR, the categories of documents sought by the plaintiffs or the individual documents within those categories are relevant, that is to say, relevant to a fact in issue. By reference to the categories set out at [9] above, and dealing with, respectively, the position of the Commonwealth and NSW, it can be seen that Categories 1, 3, 5, 6, 7 and 8 are all directly related to Fairbridge Farm and the facts, matters and circumstances which existed during the period of its operations. I am satisfied that they ought be regarded as potentially relevant to a fact in issue and thus relevant within the meaning of the UCPR. 59Category 4 relates to institutions other than Fairbridge Farm. I am not satisfied that this category is relevant to these proceedings. It is hard to see how any documents in this category would form a relevant part of the "mosaic of evidence". 60Category 2 relates to documents which may be in the governments' possession relating to a fact finding mission which the UK government undertook in order to prepare a report dealing generally with child migration from the UK to Australia. It was intended to, and did, cover a broad range of institutions. None of the documents tendered in evidence established that either the Commonwealth or NSW had actively participated in the mission, but no doubt some assistance was provided. It seems from the documents relied upon that, at most, the government had a small number documents in their possession at some time which related to the mission and its conclusions. 61Whilst it is possible that their documents mention, or describe one or more aspects of life at Fairbridge Farm, it is not apparent to me how those moments would provide any evidence of relevance to facts in issue. 62Categories 9 and 10 relate to system or protocol documents in NSW, and academic publications held by the government of NSW. Such documents are potentially relevant, but in my view they principally arise in the consideration of any evidence adduced by the Commonwealth and NSW which seeks to justify or explain the action or inaction of the governments with respect to Fairbridge Farm by reference to the then existing community (or reasonable) standards. Depending on the evidence adduced by the governments, such documents may become relevant to tender, if they exist. As well, the possession of academic articles may be a relevant matter to prove, because they go to what can properly be described as "state of knowledge". 63However, the plaintiffs are also able, by tendering such documents as they presently have from existing discovery and research efforts, and by pointing to the nature of the documents and the journals in which they appeared, to rely upon the fact that such material in the article ought to have been known to the governments. In the proof of a case of the kind here brought, to that extent that the current state of knowledge is relevant and may be proved in the context that relevant and provable state of knowledge may be actual or constructive, that is to say, knowledge which a reasonable person in the position of the defendant ought to have had. I am satisfied that the documents falling into these two categories are presently relevant. 64But I am not satisfied that the potential relevance of the documents falling into these categories is such as to place the categories in any different position to those categories which I have found to be relevant, see [58] above. Whether or not an order for discovery of these categories should be made will fall to be considered with those categories. 65Category 11, which depends upon a number of articles appearing in the UK press, does not have any relevance to the proceedings. I am not satisfied that there is any prospect of any documents falling within this category being in the possession of either of the two government defendants. 66With respect to Categories 1, 3, 5, 6, 7, 8, 9 and 10 the question is whether, having regard to the fact that these categories of documents are relevant, the Court, in the exercise of its discretion, ought make an order for discovery ought. 67Here, the commencing point is the consideration of the overriding purpose of the Civil Procedure Act. Will the exercise of the Court's discretion further the overriding purpose or will it tell against it? Will an order for discovery result in a more just, quick and cheap resolution of the issues in the proceedings than if no order for discovery is made? How does one balance a just proceeding with a quick and cheap one? 68The order for discovery would enable the plaintiffs to potentially get access to documents within categories of documents which are relevant to facts in issue. But there is a real question as to whether the documents presently exist, and if so, whether they will be of any forensic value to the plaintiffs having regard to the issues between the parties, and the stage of the proceedings: that is, prior to evidentiary statements being served. The plaintiffs have not demonstrated or sought to demonstrate, that in any one or other particular way, they will be prejudiced if the order for discovery is not made. Rather, they argue that they are being denied the possibility of a forensic advantage which arises in two ways. The first advantage lost is the possible availability of a tenderable document which assists their case. The second advantage lost is the potential availability of a submission that an inference adverse to the case put by the governments ought be drawn against either the Commonwealth or NSW by their failure to discover or produce documents in light of the existence of other documents. 69As against the possible forensic advantage, the Commonwealth and NSW point to the significant prejudice to them by way of time and cost if this Court were to make an order for discovery of the kind which is sought. They submit that it would amount to an abuse of the Court's process for an order to be made having regard to the costs and difficulty of giving discovery. They point to the delay in the proceedings if such discovery is ordered. 70In response, whilst the plaintiffs accept that there would be cost and difficulty associated with compliance with the order for discovery, they submit that the Court would discount the weight to be attributed to this factor because, those costs and expense largely derive from the inadequate and disorganised process of both of the governments in deciding how and where documents should be archived and stored. Put differently, the plaintiffs submit that they should not be disadvantaged in the conduct of their proceedings because of the haphazard approach of the governments to archiving documents. That haphazard approach was entirely of their own making, so the plaintiffs submit. 71I have come to the view that insofar as the Commonwealth and the State of NSW is concerned, that it would be inappropriate to make the order for discovery sought by the plaintiffs. While I accept the relevance and importance of the documents sought, I would regard it as an abuse of the Court's processes to now, having regard to such discovery as has already been provided, to make an order requiring the government defendants to expend costs in the millions of dollars to comply with the Court's orders. 72Even if I were to assume that the evidence relied upon by the governments as to the estimate of cost was to prove, ultimately, to be a significant overestimate and that the estimated cost ought properly be divided in half, the resulting cost and expense would still, in my view, be such as to be regarded as so high as to warrant a conclusion that the order sought ought not to be made. 73Such an exercise of discovery proposed by the plaintiffs would also significantly delay the hearing of the proceedings because of the time it would take for the government defendants to complete the exercise. 74In reaching this conclusion, I have not relied upon any view as to whether the order would be futile, or whether there is reason to conclude that a search would be likely to produce any documents. My view is that the mere existence of a reference in an existing copy of a document from the 1950's or the 1960's does not carry with it any necessary inference that such a document presently exists in the possession, custody or control of the defendants. It is not possible to form a conclusion one way or the other about the present existence of such a document. 75I am not persuaded that deferring the making of an order, as submitted by the Commonwealth and which was opposed by the plaintiffs, is appropriate. Relevance is determined by the issues identified by the pleadings. It is not necessary to wait for evidence. 76I cannot see that the making of an order for discovery in the terms sought by the plaintiffs would further the overriding purpose. In my view, such an order would be contrary to the purpose and would impose a manifestly undue burden on the first two defendants. Accordingly, the Motion as against the first and second defendants will be dismissed.

The Third Defendant 77Fairbridge Farm is able to discover relevant documents without such discovery exposing it to undue expense and delay. At least, I infer that this is so because it has advanced no evidence at all that the discovery would cause such expense and delay. 78However, Fairbridge Farm argues that having regard to the categories of documents already discovered, they are being put to the cost and expense of discovering further categories in circumstances where the categories overlap with earlier ones and some are irrelevant to the proceedings against them. As well, they argue that the evidence discloses that no further relevant documents exist. 79There is inevitably some crossover or overlap between the current categories of documents and the earlier described categories. There is little point in analysing that cross-over in detail because, since Fairbridge Farm has a continuing obligation to give discovery of the documents in the earlier categories, then if in truth these categories overlap those earlier ones, are they obliged to discover the bulk of these documents under their continued obligation of discovery. Here they are now being asked to discover documents described by specific categories, the bulk of which may well have already been discovered. I am not satisfied that this is a sufficient reason why discovery should not be given. 80The additional discovery categories set out in [10] above, and which are referrable directly to Fairbridge Farm, are all apparently relevant. Discovery should be made of documents these categories. 81As to the relevant categories of documents addressed in [9] above, of those which are relevant, are any documents in Categories 1, 5, 6, 7 and 8. Categories 9 and 10 have no relevance to Fairbridge Farm. If such documents exist, they ought to be discovered because they are relevant to facts in issue in the proceedings. I do not understand from the evidence that the burden on Fairbridge Farm is an undue one, but in order to ensure that the order for discovery furthers the overriding purpose, I will prescribe particular methodologies which will avoid the burden becoming unduly onerous.

Method of Discovery 82The plaintiffs seek an order that Fairbridge Farm files a verified list of documents in accordance with r 21.3 and r 21.4 of the UCPR. 83In some cases the compilation of this list, particularly if there is a large number of documents, could be onerous. Whether or not that is so is probably unclear because as yet no search has been made for the documents. In these circumstances, where the number of documents is unclear, I propose to make orders which, in the first instance, will avoid the burden of the discovery order becoming unduly onerous. 84However, once the documents have been discovered and the plaintiffs have inspected them, if the plaintiffs wish, they may with leave, apply for further orders of the Court requiring additional compliance with the discovery obligations of a party in accordance with the UCPR. 85I propose that the discovery be given in modified form. The first requirement, which modifies the obligations in the UCPR, is that the list which is to be produced must nominate the category of documents being discovered by subject matter, a description of each file or group of documents, the date range of the documents in each file or group, and the number of documents in that category and file or group. 86The second modification is that it will not be necessary for the list to include any references to documents of the kind which would be required to comply with r 21.3(2)(a)(ii) and r 21.3(2)(c) of the UCPR. 87Insofar as an affidavit is required to verify the list, the obligations specified in r 21.4(1)(a) of the UCPR are dispensed with. Instead an affidavit is required to be provided by the solicitor on the record for Fairbridge Farm certifying that he has informed his client of their discovery obligations, and which sets out what he has been advised by his client about the searches they have undertaken and their belief as to the adequacy of the discovered documents. 88In lieu of the ordinary period of 28 days, a period of 60 days is appropriate. Given the date upon which this judgment is being delivered, some allowance will need to be made for the Court's vacation period, in addition to the 60 day period.

Orders 89I make the following orders: (1)Notice of Motion filed 5 May 2014, seeking orders against the first and second defendants dismissed. (2)Order the third defendant to give discovery on or before 30 January 2015: (a)by providing a list of documents which nominate the category of the documents by subject matter, file name or description, date range and the number of documents in the category; (b)such list will not need to include any reference to documents in compliance with r 21.3(2)(a)(ii) and r 21.3(2)(c) of the Uniform Civil Procedure Rules; and (c)by providing an affidavit verifying the list which accords with [87] of the reasons for judgment. (3)Costs of the Motion are costs in the cause. (4)Liberty to apply on 72 hours' notice. (5)Stand proceedings over for further directions to Friday 27 February 2015 at 9.30am. '

Amendments 19 November 2014 - Renumbering Amended paragraphs: 89 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2014